IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

{CORAM: MUSSA, l.A" MWANGESI, l.A., And NDIKA, l.A.}

CRIMINAL APPEAL NO. 61 OF 2018

THE DIRECTOR OF PUBLIC PROSECUTION ••••••••••••••••••••••••••••••• APPELLANT

VERSUS
1. ANTONIA ZAKARIA WAMBURA }
2. TIMOTH DANIEL KILUMILE ••••••••••••••.•••••••••••••••••••••••RESPONDENTS
{Appeal from the decision of the High Court of Tanzania "Corruption
and Economic Crimes Division" at Mwanza Sub-Registry.}
{Matogolo, l.}

dated the 28th day of February, 2018

in
Miscel1aneous Economic Cause No.1 of 2018

RULING OF THE COURT

6th & iz" Dec. 2018

MWANGESI, l.A.:

In Economic Crimes Case NO.3 of 2018, the respondents herein are

charged with counts namely; one, conspiracy to commit an offence

contrary to section 384 of the Penal Code Cap 16 R.E. 2002, (the Code).

Two, obtaining property by false pretences contrary to sections 301 and

302 of the code. And three, occasioning loss to a specified authority

contrary to paragraph 10 (1) of the First Schedule to, and sections 57 (1)

and 60 (1) of the Economic and Organized Crimes Control Act, Cap 200

R.E. 2002 (the Economic Act).

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 By virtue of the certificate which was lodged in Court by the Director

of Public Prosecutions (the DPP) in terms of section 36 (2) of the

Economic Act, they were denied bail. They however, successfully

challenged it in Court vide MiscellaneousEconomic Cause No.1 of 2018, in

a ruling the subject of this appeal, which was handed down on the 26th day

of February, 2018 (Matogolo, J.). The DPP was aggrieved by the decision

and on the 26th February, 2018, he lodged a notice of appeal in terms of

Rule 68 (1) of the Court of Appeal Rules, 2009, (the Rules).

When the appeal was called on for hearing before us on the 6th

December, 2018, the appellant had the services of Messrs Seth Mkemwa

and Castuce Ndamugoba, learned Principal State Attorney and Senior State

Attorney respectively. On their part, the respondents were represented by

the joint forces of Mr. Kassim S. Gilla and Deya Paul Outa, learned counsel.

Mr. Outa rose to argue the preliminary objection which they had

lodged earlier on the 3rd December, 2018, under the provisions of Rules 4

(2) (a) and (c) and 107 (1) of the Rules, challenging the competency of

the appeal. It was argued by the learned counsel that, since following the

lodgment of the notice of appeal, the appellant was supplied with the

record of appeal by the Deputy Registrar on the 18th June, 2018, but failed

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to lodge his appeal within 21 days from then in terms of Rule 72 (1) of the

Rules, the appeal was incompetently before the Court. In its own words,

the notice of preliminary objection reads:

"The appellant having been served with a record of

appeal on the lsffi June, 2018, has failed to institute
the appeal within the prescribed time contrary to Rule
72 (1) of The Tanzania Court of Appeal Rules, 2009
therefore the appeal is deemed to have been
withdrawn." [Emphasis supplied]

The learned counsel urged us to disregard the memorandum of

appeal which was lodged by the appellant on the 1st November, 2018,

because it was lodged after the lapse of about five months from when the

record of appeal was supplied to them which by very far, was beyond the

period allowed by law and without leave of the Court. To that end, he

asked the Court to invoke its discretion under Rule 72 (5) of the Rules to

dismiss the appeal.

In response to what was submitted by his learned friend, Mr.

Mkemwa conceded to what was submitted in regard to the lodgment of

notice of appeal on the 26th February, 2018, and supply of the record of

appeal by the Deputy Registrar on the 18th June, 2018. He however

informed the Court that, the record of appeal which they were supplied
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with by the Deputy Registrar was incomplete because, the ruling of the

26th February, 2018, the very ruling which was intended to be challenged,

was missing.

The learned Principal State Attorney submitted further that, on the

23rd November, 2018, they wrote a letter to the Deputy Registrar informing

him of the incomplete record of appeal which had been supplied to them,

and asked to be supplied with the complete one. He added that on the 1st

November, 2018, they lodged their memorandum of appeal, whereas the

ruling which had been asked for from the Deputy Registrar, was supplied

to them on 29th November, 2018.

When prompted by the Court as to whether or not there was a

competent memorandum of appeal before the Court, the learned Principal

State Attorney was of the view that there was not. In the circumstance, he

implored us to invoke our discretion powers under Rule 72 (5) of the

Rules, to extend time within which they could lodge their memorandum of

appeal and let the appeal be scheduled for hearing on a date to be directed

by the Court.

The learned counsel for the respondents briefly submitted in

rejoinder that, prudence demanded the appellant to inform the Deputy

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Registrar of the incompleteness of the record which had been supplied to

them as early as possible and in any case, within the period of twenty one

days stipulated under the law. The failure by the appellant to do so is gross

negligence which had to interpreted that, he lost interest of further

pursuing the appeal. He strongly urged to hold so, and reiterated his

prayer for its dismissal.

Our take off in determining the preliminary objection before us, is the

wording of the preliminary objection itself. As indicated by the balded

words in the preliminary objection of the respondents quoted above, it has

been stated that the appellant failed to institute the appeal within the time

prescribed by law. In view of the stipulation under Rule 68 (1) of the

Rules, such wording was not proper because the appeal was instituted

with the lodgment of the notice of appeal. For that matter, the appeal was

instituted on the 26th February, 2018. What the appellant did not lodge

after being supplied with the incomplete record of appeal on the is" June,
2018, was the memorandum of appeal and not the appeal.

In view of the foregoing, the challenge by the respondents against

the appellant's appeal which has been premised under Rule 72 (1) of the

Rules cannot stand. This is so for the reason that the rule envisages a

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situation in which the appellant was supplied with a complete record of

appeal. In its own words, the Rule reads:

"The appel/ant shall, within twenty one days after

service on him of the record of appeal, lodge eight
copiesof the memorandumof appeal, with the Registrar
or with the deputy registrar at the place where the
appealis to be heard."

The fact that the incomplete record of appeal was prepared by the

Court, partly bails out the appellant from their failure to timeously lodge

the memorandum of appeal. Nevertheless, they cannot escape the blame

for being grossly negligent as argued by the learned counsel for the

respondents. Had they been diligent enough, the moment they got

supplied with incomplete record, they would have promptly informed the

Deputy Registrar so as to do the needful timely and let the appeal to be

disposed expeditiously.

In view of what we have observed above, we hold that the

preliminary objection raised by the respondent to the appeal is

misconceived because there is competent appeal before the Court in the

first place. Additionally, the cause for the derailment of hearing has partly

been attributed by the Court's Registry that prepared and issued the

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imperfect record. In the circumstances, we order the appellant to lodge the

memorandum of appeal within a period of fourteen days to let the appeal

be fixed for hearing on a date to be scheduled by the Registrar.

Order accordingly.

DATED at MWANZA this 1ih day of December 2018.

K. M. MUSSA
JUSTICE OF APPEAL

S. S. MWANGESI
JUSTICE OF APPEAL

G. A. M. NDIKA
JUSTICE OF APPEAL

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